Jason Elliott was called to the Bar of Northern Ireland in 2013 and is the Associate Head of School of Law at Ulster University. As a practising barrister, he has developed a largely civil practice representing individuals, companies and public bodies in litigation. This covers a wide range of areas including personal injuries, wills and employment law. In terms of employment law, he has represented both applicants and respondents in the Industrial Tribunal. At Ulster University, Jason lectures extensively on the civil areas of practise such as Equity and Trusts and delivers employment law lectures for both undergraduate and postgraduate students.
Tribunal had erred in the test to be applied for the extension of time in a discrimination claim – EAT reiterates that the Court of Appeal decision in Adedeji provides the ‘best approach’ as to how such extensions should be determined.
The claimant was employed by the Crown Office and Procurator Fiscal Service as a Fiscal Officer. The employment commenced in December 2022 and it ended in October 2023 when she resigned.
The claimant brought two claims for race discrimination. The issue was the time limit with the claims initially being dismissed for want of jurisdiction as it was outside the three month time limit.
The claimant argued that that the Tribunal had incorrectly applied the legal test for extending the three-month limit. The Tribunal referred to British Coal Corporation v Keeble which looked at a checklist of matters which had been drawn from the Limitation Act 1980. The appellate courts had outlined that there should not be a slavish adherence to the list. The Tribunal Judge also referred to Alliance & Leicester v Kidd which looked at extension based upon it not being reasonably practicable to be presented. This was a different situation as it was a discrimination claim and it had to depend on whether it was just and equitable.
The reliance upon those cases by the Tribunal Judge led to the finding by the EAT that the Tribunal had applied the wrong legal test. It was outlined that the decision of the Court of Appeal in Adedeji v University Hospitals Birmingham NHS Foundation Trust should be followed as it provides the ‘best approach’. Based upon this advice the case was remitted back to the original Tribunal for decision on the extension of time application.
The EAT provides some guidance on the provisions for the extension of time and the use of the just and equitable test. It was made clear that the checklist approach that may have been favoured in older jurisprudence was not to be slavishly followed and that a more rounded picture, as favoured in Adedeji, would have to be adopted by the Tribunal. As a result, the case was remitted back to allow for a decision on the extension of time to be considered in light of this decision and that of the Court of Appeal in Adedeji.
You can read the case in full here.
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